The “Other” Government

by Joel on August 25, 2005

Reading recently the Oklahoma news about the United Keetoowah Band of Cherokee seeking to banish (strip citizenship or tribal membership) Cherokee Nation Principal Chief Chad Smith, reminded me that at some level I am always parochial in my views, ignoring a large chunk of political matters involving Native Americans, who hold their own elections that may not be widely reported outside states such as Oklahoma. (Smith has dual membership in both the Cherokee Nation and the much smaller Keetoowah Band, which have often been at odds, with the Keetoowah recently claiming that the Cherokee Nation is trying to strip the Keetoowah of their status as an independent tribe or otherwise diminish their powers.)

In the USA, there is the Federal government, and the state, county, city and municipal governments. Often overlooked, however, are the tribal governments which play such a key role in society in my part of the country. Many of my church members receive health care, housing and other benefits through tribal government programs.

When I cross the border into Oklahoma from Arkansas, the first sign I see isn’t “Welcome to Oklahoma” but “Entering the Cherokee Nation.” Many of my friends, permanent residents of Oklahoma, don’t have Oklahoma license plates (tags) on their automobiles, but instead have their cars registered only with their Tribe, which in my area is primarily the Cherokees. (The Tribes share registration information with the State, so registering a car with your Tribe isn’t a way to avoid the Oklahoma Highway Patrol (unofficial site)or other law enforcement agencies.) The tribes keep some of the tag money for their own uses, but also expend large amounts that benefit the entire state.

It isn’t easy, at least for me, to explain the status of tribal governments within the United States, but I will give it a try. Over the years, “whites” used various methods to deal with Native Americans or “Indians.” Sometimes it was done through treaty, many of which weren’t kept. Sometimes it was done through peaceful co-existence. Other times the “solution” was removal (e.g. the “Trail of Tears” by which most Cherokees were forceably removed to Oklahoma, resulting in the deaths of thousands from starvation or sickness), by placement on reservations (mostly a true disaster) and then at other times by outright war. At one time, Indians weren’t even considered “human” by some courts, although that was finally settled to the contrary by the case involving Ponca Chief Standing Bear in 1879. Various court decisions came down that eventually established the tribes as subordinate to the federal government but not to the states. It was also established that while no new treaties would be signed, existing ones would be honored. However, the Federal Government by legislative act gave control over tribal matters in general to the Bureau of Indian Affairs, now a division of the Interior Department and through a series of court rulings, as amplified by federal law, the tribes in general were established as “domestic dependent nations.” Today, the Bureau of Indian Affairs, a division of the U.S. Department of the Interior, holds, in trust, millions of acres of Indian lands as well as other assets. Unfortunately, over the years, it appears the Federal Government lost or embezzled perhaps billions of dollars of Indian assets, often through theft of oil and gas royalties. There are on-going court orders to straighten the mess out but every political administration seems to find new ways to delay a final accounting. (See references to Cobell versus Babbitt (now Norton) here. High-ranking officials from both the Clinton and Bush administrations have been held in contempt of court, and even threatened with jail time, for refusal to enforce court orders concerning the management of Indian properties.)

Tribal sovereignty is significant, but not absolute. In many instances, tribals governments handle entirely criminal and civil matters, particularly at the non-felony level, while in other instances jurisdiction is handed over to the states or federal government, mainly depending on whether non-Indians are involved and according to various laws that establish the status of tribes by individual state. Tribal law enforcement offiicials often create cooperative networks or efforts with state law enforcement agencies. It isn’t unsual to read of “drug raids” on meth labs done cooperatively by tribal and state/local law enforcement. In many matters, however, the Tribes have full authority to conduct their own business. To sue in federal court, though, the tribes must receive the permission of the Bureau of Indian Affairs. And since tribal relationships are almost entirely governed from a legal standpoint by their relationship to the federal government and not to the states, states must often enter “compacts” for cooperative efforts. Because of that relationship limitation, the states often put pressure on the federal goverment to put pressure back on the tribes, since the states often can’t act independently to regulate what the tribes do. In Oklahoma, such “compacts” include regulation of gambling and its revenue, sale of tobacco products, etc., with provisions for revenue sharing. Most Oklahoma tribes own or run many businesses themselves, including Internet companies. Non-Indians, particularly business people, often complain of unfair competition, such as with tobacco sales. However, considering that over the generations Native Americans had so much property stolen or manipulated from them, I’m inclined to give the tribes a break, even as I don’t care for two of their main industries as mentioned: tobacco and gambling. On the other hand, because federal courts, even particularly the U.S. Supreme Court haven’t been too keen on the idea of sovereign immunity of the tribes at the state level, have often found that by the slightest of contractual provisions with states, the tribes have effectively waived immunity and may be sued in state court. Thus even today, the status of tribes as “quasi” sovereign nations has not been fully litigated or adjudicated.

In reiteration of tribal status, consider that while Oklahoma’s state constitution bans same-sex marriage, such state laws aren’t binding on the tribes, which may issue their own marriage certificates to tribal members and which generally must be given “full faith and credit” except that Tribes were included in the 1996 Federal “Defense of Marriage Act”. In fact, the Cherokee Nation Judicial Appeals Tribunal has recently been adjudicating a court case involving such a same-sex marriage. Many Oklahomans resent the tribal governments and their powers, while many others celebrate the diversity and recognize that tribal governments have helped to protect their minority citizens, as well as providing health and social services unavailable under other terms.

Oklahoma tribal governments spend millions of dollars on public schools and roads, primarily in areas where their members live in high concentration. In some areas of Oklahoma, it is not unusual for the tribes to spend just about as much on roads and bridges as the State of Oklahoma does.

I have included this post under the classification of “faith” because how humans relate to each other in community is inherently a faith matter.

Note: This post may get revised as I get a better handle on how to accurately describe tribal status and functioning. (Although I have Cherokee blood, I am not on the Cherokee rolls and thus don’t participate in tribal affairs myself.)